09 May 2011

I recently wrote about the suggestion that a "Great Firewall of Europe" should be created - a fine example of political cluelessness when it comes to technology. Here's another, this time from Portugal:

The Socialist Party will present this new proposal for approval in the next Government, no matter if they win the elections or not. In regards to Creative Commons, they support a vision where Creative Commons harm Culture, and in this law proposal they intend to turn them illegal. Here's how (quick translation, I'll soon post the whole proposal in Portuguese online, so others can make their own translation; this is only the part regarding written works, but there are similar items in "Article 3" for other works, except software):

Article 3, point 1 - The authors have the right to the perception of a compensation equitable for the reproduction of written works, in paper or similar support, for instance microfilm, photocopy, digitalization or other processes of similar nature.

[...]

Article 5 (Inalienability and non-renunciability) - The equitable compensation of authors, artists, interpreters or executives is inalienable and non-renunciable, being null any other contractual clause in contrary.

Here: in sum, every author (except software authors, so thankfully free software isn't affected) has the right of getting money out of private copy, and they can't renounce it, so every Creative Commons license, where saying "You are free to share — to copy, distribute and transmit the work" (or actually, in legalese, "licensor hereby grants you a worldwide, royalty-free, non-exclusive, perpetual license to reproduce the Work") is illegal.

Judging by the interesting discussion around the post quoted above, it's still not entirely clear whether this is really the intent of this new law. It's possible, for example, that this is just very badly drafted, and not actually an attack on the idea that creators should be able to share their work freely if they wish.

Unfortunately, a follow-up comment to the post is more pessimistic:

The SPA position (that the Ministry of Culture shares because they state they agree 100% in their positions) is that every creative commons author is harming artists, authors and the creative ecosystem.

Since its creation in May 22, 1925, the Portuguese Authors Society took on two important areas of activity: the mutualist and the cultural. The mutualist one has allowed thousands of authors to find support in old age and in sickness. As for the cultural one, it remains active, always with new proposals.

It seems here that those "new proposals" have nothing to do with helping authors distribute their creations as they wish, but is more about imposing a very one-sided and anachronistic view that only fools give away their creations. (Or as Bill Gates put it some years back: "Who can afford to do professional work for nothing? What hobbyist can put 3-man years into programming, finding all bugs, documenting his product and distribute for free?")

Some people, and corporations in particular, claim that the purpose of the copyright monopoly is for a certain profession to make money. That was never the case, and frankly, the idea is revolting to any democracy and functioning market. Bricklayers don’t have laws guaranteeing they make money, marketers don’t, plumbers don’t, and nobody else does, either.

However, the means of achieving the maximization of the available culture has been to give some creators a monopoly on the opportunity — not the right, but the opportunity — to make money off of a creative work. This has been the means to maximize culture for the public at large, and never the end in itself.

This also means that the only legitimate stakeholder in copyright legislation is the public. The monopoly is indeed a balance, but not the “balance” between corporate profits and human rights that the copyright industry likes to paint and pretend. In fact, the copyright industry is not part of the balance at all.

Unfortunately, this is not some abstract battle between different points of view. For example, if CC licences become illegal in Portugal, this would presumably mean that contributing to Wikipedia would also become illegal. Maybe Wikipedia itself would become illegal - there seems no limit to the absurdity of the knock-on consequences when starting from such a ridiculous premise.

Let's hope that enough Portuguese artists protest and the politicians come to their senses before Portugal becomes the laughing-stock of the civilised world.

22 comments:

@LED Tape: unfortunately, the law is so ill-thought out it's simply not clear how on earth it would work in practice. Let's hope the attention brought to bear on it internationally will cause them (a) to drop it or at least (b) clarify it.

@Vaneeesa: I think it's a little different because art is not really fungible: if I give away *my* sonnet it doesn't stop you from selling *your* sonnet.

I, however, may want millions to read my sonnet (I can dream) by giving it away for free: SPA says I can't do that, even if it's my sonnet. It also says that art is about money: no money, no art - not what most people would say, I think.

Moreover, what this does is effectively outlaw contributing to Wikipedia and open content in Portugal - surely not something the Portuguese government could want?

I've heard quite a few graphic designers in the states discouraging graphic designers and artists from giving away anything for free over the past year or two. It seems like the Gap or another company have had contests recently to redesign their logo for them, and the artists all freaked out and told all their artist friends not to submit contest entries, because they'd be seen as cheapening their craft. No mention of the fame you'd get for being the one that designed a logo for a well known major company.

This is just terrible, absolutely terrible. I'm a CC artist (videography), and if this mindset spreads in other countries in EU, I might consider never coming back to Europe (I'm originally from Greece, currently in US). As much as I like picking on the US about its laws and such, it seems that other countries have their own share of bad laws.

first: SPA is an independent society and it's not obligatory for an artist to charge (or not charge) a fee for his/her work through SPA. the only thing you have the right to do here to protect your authorship and copyright is to register your work at a government office (for a small fee).if the government decides to abide by SPA's rules that's different, but SPA only can work as a consultant and not as a decision or lawmaker in this kind of situation.

on the other hand I don't understand this law through the eyes of our government. Portugal is a society that in the latest years has encouraged young people to work for free (in any area), thus ruining the market for people that don't, and creating nasty work situations of professional work being usually badly done by non paid apprentices.

when I started working, intern-ships were paid, nowadays for young people to find paid intern-ships is a bigger search than for the Holy Grail. therefore they hire interns for a short period, just to fire them afterwards and get a new intern.

so, in my opinion, this law is an even bigger anachronism than previously stated in this article and comments.

this is pure silliness and I hope, as in many cases concerning culture over here, it all falls into oblivion.

The way this is formulated, it doesn't sound it is illegal to use CC. Its not like the author goes to jail.

Rather (and even worse) the consumer and redistributor of CC works will be liable to pay.Even if there's no Portuguese rights holder organisation with the right to collect it, some people receiving the estate of an author will - hence no one will risk touching CC

Rest assured that if an author isn't registered with the blood-sucking scum that is SPA, the blood-sucking scum in government will find a way to tax their work.

Also, most "artists" in PT are useless parasites that expect to be handed all sorts of subsidies and to be protected from competition by the government, either directly or through SPA, so rest assured there will be strong support for this, just wait and see.

The proposed law excludes software, but that doesn't mean freesoftware would not be harmed. Software needs manuals, and freesoftware needs free manuals. (Seehttp://www.gnu.org/philosophy/free-doc.html.) if the developers of aprogram are not allowed to develop its manual, that would render thesoftware useless.

Note: Since I'm posting this comment in a blog named "open" whichlists "open source" as topic, I need to remind people that I neveradvocated that. I advocate free software, free as in freedom. Seehttp://www.gnu.org/philosophy/open-source-misses-the-point.html.

How the hell they think to do this?Do they want to pass the law that it is illegal to give something for free and always one must require money for anything?That violates the basic rights and is just impossible to pass. So how do they imagine this?

About Me

I have been a technology journalist and consultant for 30 years, covering
the Internet since March 1994, and the free software world since 1995.

One early feature I wrote was for Wired in 1997:
The Greatest OS that (N)ever Was.
My most recent books are Rebel Code: Linux and the Open Source Revolution, and Digital Code of Life: How Bioinformatics is Revolutionizing Science, Medicine and Business.